By Kate Lozano
The Mary Leonard Law Society hosted a successful spring mini-series of continuing legal education seminars focused on diversity issues this year. The first in the series was presented on February 15, by Beth Allen, one of Portland's premiere LGBT family law practitioners, and a founding member of Basic Rights Oregon. Ms. Allen gave a fascinating presentation on current developments in marriage equality law. Ms. Allen discussed the impact of a recent continuum of cases, including Tanner v. Oregon Health and Sciences University, English v. Public Employees Retirement Board, Haldeman v. Department of Revenue, State of Oregon, and similar California cases.
Ms. Allen did an excellent job of breaking down the complexities inherent in living under the variety of laws impacting marriage equality, such as the child custody issues faced by lesbian couples who separate, or in which one of the partners dies, prior to registration as domestic partners or in states where no such registration exists. Ms. Allen explained that these rights, for the non-biological mother, may be be dependent upon whether that mother adopted the children, or upon whether the couple could have been legally married at the time the biological mother became pregnant, in which case the non-biological mother's consent to her spouse's insemination controls her later custody rights. Ms. Allen also provided an overview of the addition of sexual orientation and gender identity to Oregon's Non-Discrimination Act and the act's religious exemption, the non-portability of registration under the Family Affairs Act, and the equal protection arguments currently being mounted against the Defense of Marriage Act (DOMA) including those related to tax code provisions that adopt DOMA, which deny gay and lesbian spouses and registered domestic partners the same estate death benefits as same-sex married couples.
Finally, Ms. Allen discussed the future direction of LGBT legal issues, noting that Basic Rights Oregon's litigation focus has been shifting to transgender equality issues, while they have been addressing marriage equality in a "hearts and minds" campaign for the past year, with person-to-person outreach, and a planned television campaign to explain why marriage matters.
The second seminar in the series was presented on April 12, 2011, by Assistant Professor of Law Keith Cunningham-Parmeter, of Willamette University College of Law, who was also a Skadden Fellow with the Oregon Law Center Farmworker Program. Professor Cunningham-Parmeter's compelling CLE focused on the disparate treatment of immigrants across the nation, as a patchwork of state immigration laws have developed.
Professor Cunningham-Parmeter entitled his thought-provoking presentation, "State Immigration Experimentation" and he focused on the interesting tensions that have developed between different states, as well as between the states and the federal government, as what are termed either "restrictionist" states or "sanctuary" states, create widely differing legislation impacting immigrants. Prof. Cunningham-Parmeter explained that, on the state level, sanctuary states like Oregon have adopted laws keeping immigration matters largely outside of the state's purview, under the rationale that immigration is a federal matter and that such a position will encourage immigrants to communicate and cooperate with state and local law enforcement. He described sanctuary laws as those like ORS 181.850, which prohibits the use of state monies, equipment, or personnel for detecting or apprehending persons whose only violation of law is an immigration violation. On the other side of the spectrum, Prof. Cunningham-Parmeter discussed restrictionist states like Arizona, which have adopted laws that create "cooperative" immigration enforcement with the federal government, under the rationale that they are compensating for gaps left in federal immigration law and enforcement practices. He pointed to well-known Arizona laws in this vein, like the 2010 law requiring the police to verify the immigration status of persons involved in any lawful stop and requiring police to hold all arrested persons, to verify those persons' immigration status.
Prof. Cunningham-Parmeter analyzed some of the state/federal tensions created by these different state statues including which federal immigration laws may expressly or impliedly preempt which state immigration laws and, whether the citizens of restrictionist states actually pay the costs of their own statutes -- e.g., it is theorized that Arizona migrants now simply migrate to other states, and that all U.S. citizens pay increased Homeland Security costs because Arizona's Federal Homeland Security Support Centers have become overburdened with the influx of unauthorized immigrants transferred from state law enforcement. Last, Prof. Cunningham-Parmeter drew a parallel between the Immigration Reform and Control Act of 1986, which provided amnesty, greater border security, and employment verification mechanisms for what was then a population of 2 to 3 million undocumented aliens, and the current situation, where the same issues have returned to the front of the national immigration debate, but in the face of an undocumented population that -- far from being legalized, returned, and excluded by the 1986 legislation, has now increased to 12 to 13 million.